Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later.

June 14, 2005

PV: The Confluence of Merits and Emotion: When Settlement Conferences Reach an Impasse

by Guest Contributor

Having grown weary of pondering various aspects of the criminal law, specifically a formal adoption of the cultural defense, I've moved on to the less theoretically provocative though more practically useful world of ADR. As always, your thoughts, comments, and reactions are welcome at pvesque@hotmail.com. -PV

As I mentioned in an earlier posting, I am spending the summer clerking for a federal judge in Cincinnati, Ohio. To date, I have intimately participated in five settlement conferences and have assisted my judge in preparation for and analysis of each conference. With this background, I have come to a few conclusions about the process.

First and foremost, it is absolutely apparent that cases only get solved when parties make a substantial concession before they come to the table, are ready to make a further concession at the table, and end the matter on terms mutually undesirable. That at the outset a plaintiff has unrealistically high demands and a defendant has a seemingly naive understanding of its potential exposure is without question. However, what is also evident is that both sides are rational enough to understand that a compromise lies somewhere in the middle. What both sides do not want to hear, though, is that the only way to reach that middle ground is to (1) ignore the merits and (2) check emotion at the door.

To be sure, this is never easy. It certainly isn't easy for the plaintiff who wants a pound of flesh for having been wronged. And it isn't any easier for the defendant who wants to set an example. In the end, however, it is reasonableness that must win out - finding a point somewhere on the continuum of demands and counter-offers that isn't wholly agreeable to either party, but is a reasonable solution nevertheless.

The concept of reasonableness, and its decided victory over the merits and emotion, should not be a foreign concept to most litigants, simply given that reasonableness-seeking Centrists are probably the majority in America. But emotion and the desire to be righted when one has been wronged is often times an indomitable feeling. It is a feeling, however, that the judge must subdue if reasonableness is to win the day.

Prior to ADR, for many, many decades, there have been arbitration procedures that are less formal than court cases. But arbitration did not become a substitute for court litigation except in certain limited areas, such as securities law and in that instance forced upon parties by contract. ADR has been proliferating. It has in fact become a profit center for retired judges to augment what may be significant retirement benefits. Judges who push for ADR may not want to really try cases and they spend perhaps too much time trying to force (yes, force) settlements. Perhaps if more trial judges were prepared to actually try cases, the parties themselves would realize that it might be in their interests to stop stonewalling each other and really try to resolve the dispute. After all, litigators, as distinguished from old fashioned trial attorneys, do not really, really want to try cases - no, spend a lot of the client's money on discovery, earn their fees, and then seek to settle, rather than run the risk of losing. As ADR advances, it will surely face the same problems that have faced litigation in the courts and in arbitration. Then some new procedure may develop as a substitute. How about Dr. Phil?

Posted by: Shag from Brookline at June 15, 2005 06:34 AM

You're certainly right, ADR is advancing. In fact, it's steam-rolling. I've often wondered how difficult it would be to break into the market, too. Specifically, what if several federal judicial clerks ban together and refuse to work 80-hour work weeks and start an ADR firm. No bar to take. Lots of reasonableness and practical experience.

The only drawback is that experience seems to be the primary factor in choosing a mediator, not reasonableness or intelligence (though that's not to suggest that the two attributes are mutually exclusive).